CHARLES v. RENO

This matter was opened to the Court by Petitioner's application
for a writ of habeas corpus and complaint for declaratory and
injunctive relief. Petitioner is in custody pending deportation
and claims that he is a United States citizen. For the following
reasons, Petitioner's application will be denied.

BACKGROUND

Petitioner was born in Haiti on August 7, 1976, to Evelyne
Petit and Nicholas Charles. Evelyne Petit and Nicholas Charles
never married, nor has Evelyne Petit ever been to the United
States. Nicholas Charles appears on Petitioner's birth
certificate as his natural father. (Ex. C to Pet.) On March 13,
1989, Petitioner lawfully entered the United States, where his
father Nicholas was already residing, in Irvington, New Jersey.
Nicholas Charles attested that he would provide financial support
to is son, and Evelyne Petit signed an affidavit entrusting the
care of Petitioner to his father. On November 3, 1993,
Petitioner's father became a naturalized United States citizen.
At that time, Petitioner was 17 years old.

On September 6, 1996, Petitioner was convicted in New Jersey of
Conspiracy and Aggravated Assault. On September 9, 1996,
Petitioner was convicted in New Jersey of Aggravated Assault and
Unlawful Possession of a Weapon. The Immigration and
Naturalization Service ("INS") issued an Order to Show Cause why
Petitioner should not be deported pursuant to § 241(a)(2)(A)(iii)
of the Immigration and Nationality Act ("INA") on January 17,
1997. (Ex. A to Pet.) An immigration judge denied Petitioner's
application for the relief of voluntary departure. At a hearing
at which Petitioner was represented by counsel, Petitioner
conceded or admitted deportation, and a Final Order of
Deportation to Haiti was issued on December 4, 1997. (Ex. 2 to
Gov't Answer.) The Board of Immigration Appeals ("BIA") denied
Petitioner's Appeal on September 1, 1998.

On November 1, 1999, Petitioner was paroled from the custody of
the New Jersey Commissioner of Corrections and taken into custody
by the INS. On November 8, 1999, Petitioner moved to reopen his
case before the BIA. This was the first occasion on which
Petitioner asserted his claim of derivative United States
citizenship under § 321 of the INA. 8 U.S.C. § 1432. On January
5, 2000, the BIA denied Petitioner's motion to reopen the case as
untimely. In a footnote, the BIA noted that Petitioner claimed
derivative United States citizenship under § 321(a)(3) of the INA
and commented that "[w]e see no reason to invoke our own
authority to reopen these proceedings to address that claim. It
is not apparent that the `legal separation' and `legal custody'
requirements of section 321(a)(3) of the Act have been satisfied
here." (Ex. 2 to Gov't Answer.)

On March 6, 2000, Petitioner filed an emergent petition for a
writ of habeas corpus and a complaint for declaratory and
injunctive relief in this Court. Petitioner alleges that INA
Section 321 violates the Equal Protection Clause of the Fifth
Amendment by irrationally denying eligibility for relief to
illegitimate children of naturalized fathers with sole custody
while granting relief to children of naturalized fathers who are
legally separated and have legal custody (Count One); and that
INA Section 321(a)(3) violates the Equal Protection Clause of the
Fifth Amendment because it irrationally denies eligibility for
relief to illegitimate children of naturalized fathers while
granting eligibility for relief to illegitimate children of
naturalized mothers (Count Two).

By Order filed March 7, 2000, this Court stayed Petitioner's
deportation pending the outcome of its decision on his
citizenship status. The Court conducted a hearing on March 23,
2000, at which it concluded that fact issues existed as to
whether Petitioner was in the "legal custody" of his father at
the time the father became a naturalized United States citizen as
required by § 321(a)(3). (Ex. B to Pet.) The Court also expressed
doubt as to whether Petitioner could demonstrate his parents'
"legal separation" in light of the fact that his parents were
never married. The parties have submitted supplemental briefing
on § 321(a)(3)'s requirements of "legal custody" and "legal
separation."

STANDARD OF REVIEW

There is only a limited scope of judicial inquiry into
immigration legislation. Although not specifically delegated to
the federal government by the Constitution, "the power to expel
or exclude aliens is a fundamental sovereign attribute exercised
by the Government's political departments and is largely immune
from judicial control." Fiallo v. Bell, 430 U.S. 787, 792, 97
S.Ct. 1473, 52 L.Ed.2d 50 (1977) (citations omitted)
(interpreting a previous version of § 321 and concluding that it
was not for the Court to probe and test the justifications for a
legislative decision on immigration matters so long as the
justifications appeared to be rationally based); Kleindienst v.
Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972)
(quotation omitted) ("over no conceivable subject is the
Legislative power of Congress more complete than it is over the
admission of aliens").

DISCUSSION

I. Jurisdiction

The Government's Answer stated that Petitioner failed to
exhaust his administrative remedies because "he failed to timely
move for reconsideration or seek judicial review of the September
1, 1998 decision of the BIA." (Ans. &para; 21.) At oral argument, the
Government agreed that Charles could not have appealed the BIA
decision to the Court of Appeals because he is a criminal alien.
See Liang v. INS, 206 F.3d 308, 323 (3d Cir. 2000) (holding
that under permanent rules of HRIRA, the Court of Appeals lacks
jurisdiction over claims of aliens ordered deported for crimes
listed in INA and holding that district courts retain habeas
jurisdiction over deportation orders of criminal aliens).
Further, this Court believes that a motion to reopen or for
reconsideration does not fall within the statutory exhaustion
requirement because a motion to reopen or for reconsideration of
a final order is a discretionary remedy, ...

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